Double Prosecution of Illicit Organ Removal as Organ Trafficking and Human Trafficking, with the Example of Belgium

Abstract

In 2015 the Council of Europe introduced a new criminal law convention to address organ trafficking. The main focus of the Council of Europe Convention against Trafficking in Human Organs is the crime of illicit organ removal. The act of illicit organ removal is also criminalised under international human trafficking instruments that consider it as a form of exploitation of a living organ donor. As both legal frameworks rely on two key concepts to determine if the respective crimes occurred, namely, valid consent to organ removal and the presence of monetary benefits, a clear overlap exists when an organ is removed from a living donor. The question arises as to whether the illicit organ removal, based on the same factual circumstances and material evidence, is sufficiently distinct for an offender to be prosecuted under both regimes simultaneously or in separate criminal proceedings, without violating the principle of ne bis in idem. This paper aims to answer that question by (1) examining the crime of illicit organ removal under both criminal regimes and (2) analysing Belgian criminal law frameworks on human trafficking and organ trafficking in the context of the applicability of the principle of ne bis in idem as developed by the European Court of Human Rights and the Court of Justice of the European Union. This analysis reveals the complexity of the issue. It also confirms the proximity of the legal definitions of both types of crimes, resulting in a considerable overlap and a clear risk of double prosecution and punishment. On the basis of these findings, recommendations are formulated on how to harmonise the application of both trafficking frameworks so as to minimise that risk.